Commissioner James Danly Statement
May 6, 2022
Docket Nos. CP14-119-002, CP14-120-002
I concur in today’s decision[1] to grant the requested extension of time to construct and place into service the facilities authorized by the Commission in its December 2015 order.[2] I write separately to state that the Commission should exercise caution when inquiring into whether a prior authorization order’s public interest findings and environmental analysis remain valid.
Although the Commission’s practice of establishing project deadlines in authorization orders is in order to “diminish the potential that the public interest might be compromised by significant changes occurring between issuance of the [authorization order] and commencement of the project,”[3] our inquiry when reviewing a request for extension of time is narrow—it is not an opportunity to revisit the determinations made in certificate proceedings after orders have become final and unappealable.
While I take comfort in the Commission’s statement in an order issued concurrently with this one, that, “extension of time proceedings are not an invitation to re-open the dockets,”[4] I remain wary. And with good reason. Recent Commission orders on extensions of time, some of which I have voted for, have included language that I believe reinforces the Commission’s misguided view in Algonquin Gas Transmission, LLC,[5] issued in 2021, that it may revisit determinations made in final, unappealable certificate orders.[6] In that proceeding, in the face of more than 80 years of contrary precedent, the Commission reopened the record of a judicially-final certificate order without even an attempt to offer a statutory basis for its action.[7] Although the Commission has since terminated the proceeding,[8] in doing so it refused to identify the authority that would permit it to reopen a certificate proceeding once final, while still leaving the door open to later revisit whether an approved project is still in the public convenience and necessity.[9]
To be clear: the Commission lacks authority to revisit its public convenience and necessity determinations once the order is final and unappealable.
For these reasons, I respectfully concur.
[1] See Trunkline Gas Co., LLC, 179 FERC ¶ 61,086 (2022) (Extension of Time Order).
[2] See Lake Charles LNG Co., LLC, 153 FERC ¶ 61,300 (2015) (Authorization Order).
[3] Altamont Gas Transmission Co., 75 FERC ¶ 61,348, at 62,103 (1996).
[4] Corpus Christi Liquefaction, LLC, 179 FERC ¶ 61,087, at P 15 (2022) (citation omitted); see also id. (“The Commission will not consider the NGO Parties’ arguments regarding reconsideration of GHGs and the impact on exports on domestic natural gas prices because they seek to re-litigate the issuance of an authorization or certificate order, including whether the Commission properly found the project to be in the public convenience and necessity or public interest.”) (citation omitted).
[5] 174 FERC ¶ 61,126 (2021) (Danly, Comm’r, dissenting).
[6] For example, recently in Delfin LLG LLC, the Commission stated, “[i]n Chestnut Ridge, we explained that when we act on an application, we rely on information available at that time but that the data that underpin our conclusions on the need for a project, its commercial prospects, and its environmental impacts are subject to change. As we stated there, ‘the validity of our conclusions and environmental mitigation conditions cannot be sustained indefinitely.’” 178 FERC ¶ 61,031, at P 12 (2022) (quoting Chestnut Ridge Storage LLC, 139 FERC ¶ 61,149, at PP 11, 25 (2012)) (emphasis added). As I note above the line, I have voted for other orders that have included similar language. See, e.g., Transcon. Gas Pipe Line Co., 175 FERC ¶ 61,148, at P 17 (2021). In my concurrence in part and dissent in part in Delfin LNG LLC, I explained how that language reinforces the misguided view in Algonquin Gas Transmission, LLC. See 178 FERC ¶ 61,031 (Danly, Comm’r, concurring in part and dissenting in part at P 3).
[7] See Algonquin Gas Transmission, LLC, 174 FERC ¶ 61,126; id. (Danly, Comm’r, dissenting at PP 18, 22); Former Commissioners Mike Naeve, Elizabeth A. Moler, Donald F. Santa, Jr., Pat Wood, III, Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly April 12, 2021 Letter to the Commission, Docket No. CP16-9-000, et al., at 1 (“We are troubled by the novel assertion of authority to reconsider a long-since-final certificate order, without any suggestion that the terms of that order were violated, and long after a private company built and placed into service the facilities in question, at a cost of approximately a half billion dollars. We are unaware of any other instance, in the eight-decade history of the Natural Gas Act, where the Commission has taken such a step.”). Cf. U.S. v. Seatrain Lines, Inc., 329 U.S. 424 (1947) (affirming district court’s holding that the Interstate Commerce Commission had exceeded its statutory authority in reopening the proceeding and altering the certificate).
[8] Algonquin Gas Transmission, LLC, 178 FERC ¶ 61,029 (2022) (Danly, Comm’r, concurring in part and dissenting in part).
[9] Id. (Danly, Comm’r, concurring in part and dissenting in part at P 9) (“The majority’s refusal to explain the Commission’s authority only highlights the obvious fact that it had none. And instead of acknowledging this plain fact, the majority leaves the door open to revisit whether a project is in the public convenience and necessity at its whim.”).